Opinion
A152328
05-09-2018
In re B.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV-026274-06)
The juvenile court found that 15-year-old B.T. committed attempted robbery and placed him on probation. (Pen Code, §§ 211, 664; Welf. & Inst. Code, § 602.) The minor appeals upon contentions that eyewitness identification was wrongly admitted, there is insufficient evidence he committed the crime, and the juvenile court abused its discretion in excluding expert testimony. We shall affirm the juvenile court's jurisdictional and dispositional orders.
Individuals are referred to by their initials to protect personal privacy. (Cal. Rules of Court, rules 8.90(b)(4), 8.401(a)(2).)
Statement of Facts
T.W. was accosted by would-be robbers on the night of June 21, 2017. T.W. testified she left work in San Francisco, rode BART to Oakland and walked several blocks home. On the way, she spoke on her cell phone to her father, using earbuds. T.W.'s father was driving to his job at BART and stopped the car to collect his BART identification card from her. At this time, about 10:00 p.m., T.W. noticed "two guys" behind her who she believed were just "walking down the street." T.W.'s father drove away.
T.W. turned toward her apartment building and started to unlock the front gate. She had her cell phone and wallet in one hand and a key in the other hand. The two African-American males she had seen earlier approached and stood next to her, one on each side. The male on her left lifted his shirt to show her a handgun tucked in his waistband and said "run your shit," which T.W. knew meant give me your property. The second male, later identified as the minor, nodded to the gunman in agreement: "he started shaking his head like, run your shit, basically." T.W. testified the gunman and the minor worked as a team.
Fearing for her life, T.W. backed away but decided she was not going "to let them take [her] stuff." She yelled for help. The minor put one hand on her shoulder and the other over her mouth. T.W. struggled and struck out, punching the gunman. The minor put both hands on her shoulders and pushed her to the ground. The minor "pinned" T.W. to the ground while the gunman tried to pull her wallet and phone from her hand.
T.W. fought and yelled for help. A neighbor called out "What's going on? What are you guys doing?" The neighbor came downstairs and the two assailants ran, down Fruitvale Avenue. They did not get her property.
T.W. had forgotten to disconnect the telephone call with her father and was still wearing her phone earbuds during the attempted robbery. Consequently, her father heard the commotion over his cell phone. The father testified he heard his daughter's cries for help, turned his car around, and sped toward home. On Fruitvale Avenue about a block from home he saw a young man, later identified as B.T., running from the direction of the apartment building. The father drove after B.T. yelling "Stop. I got you." B.T. ran into a laundromat and locked himself inside a bathroom.
The police were called to the laundromat. The officers banged on the door and told the minor to come out. The minor opened the door and the police placed him in handcuffs. The police were escorting him through the laundromat when T.W. appeared in response to a telephone call from her father. As the police walked past T.W. with the minor in handcuffs, T.W. spontaneously said the minor "was one of the men who tried to rob her." The police took T.W. aside and questioned her. They told her the suspect they arrested may or may not be one of the individuals who tried to rob her and said she had to be "really sure" about her identification. T.W. provided a physical description of the individuals and identified the minor as the one who pinned her down.
T.W. reaffirmed her identification at the jurisdictional hearing. She testified she "had a good look at his face" during the attempted robbery. T.W. said there was "dim lighting" around her apartment building but the minor was standing "on the side that the light was shining on." When questioned about the certainty of her identification, she testified: "I don't have any uncertainty that . . . he was . . . one of the guys that tried to rob me."
The minor denied participating in the attempted robbery. He said he was walking with two unnamed friends when they came upon T.W. and his friends "decided to rob" her. With the attempted robbery underway, the minor ran to the laundromat because he "didn't want anything to do with it." The minor admitted committing prior offenses: attempted robbery and driving a stolen car.
Discussion
The minor contends that admission of T.W.'s testimony identifying him as one of her assailants violated his constitutional right to due process of law. He maintains that T.W.'s initial identification was based on an impermissibly suggestive single person show-up, and her subsequent in-court identification was based upon the earlier improper identification.
The minor did not move to exclude the witness identification testimony nor otherwise object to its admission. The failure to assert a timely objection forfeits the issue on appeal. (Evid. Code, § 353; People v. Cunningham (2001) 25 Cal.4th 926, 989.) In any event, the claim fails on the merits and, thus, also defeats the minor's alternative argument that defense counsel was ineffective in failing to object.
"In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
T.W. identified the minor within minutes of the attempted robbery when he was apprehended a block from the scene of the crime. The police did not present the minor to T.W. as a suspect for identification. The victim's father summoned her to the site of the minor's arrest and, as the police walked past T.W. with the minor in handcuffs, T.W. spontaneously said he "was one of the men who tried to rob her."
The minor argues that the victim's spontaneous identification as he was being led away in handcuffs is subject to the same suggestibility concerns as an in-field show-up in which the police present an individual to the eyewitness as a suspect. Assuming this is so, the circumstances surrounding the identification were not unduly suggestive nor the identification shown to be unreliable.
"A single-person show-up is not inherently unfair." (In re Carlos M. (1990) 220 Cal.App.3d 372, 386.) The police made no statement to T.W. identifying the minor as one of the perpetrators. They made no statements to her at all before her identification, as they did not realize she was the victim when the minor was first detained. T.W. did see the minor in handcuffs but numerous cases have held admissible "in-field identifications when the suspect was in the back of a patrol car or handcuffed." (In re Richard W. (1979) 91 Cal.App.3d 960, 970 [collecting cases].)
An in-field identification is inherently suggestive to some degree, as the process singles out a suspect. (People v. Anthony (1970) 7 Cal.App.3d 751, 765.) "The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself." (Id. at pp. 764-765.) The circumstances surrounding the in-field identification here were not unduly suggestive.
Even an unduly suggestive identification procedure does not warrant reversal absent a " 'substantial likelihood of misidentification' " under the " ' "totality of the circumstances." ' " (Manson v. Brathwaite (1977) 432 U.S. 98, 106.) "The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." (Ibid.)
In the present case, there is no substantial likelihood that T.W. misidentified the minor. T.W. was face-to-face with him when he pinned her to the ground and placed his hand over her mouth. T.W. testified that while the lighting in front of her apartment was "dim," her assailant "was still in the area where the light was, so I saw his full face." T.W.'s attention was sharply focused on her attackers. T.W. identified the minor as one of the assailants before giving the police a physical description of the two young men, so there is no "prior" description with which to compare her identification. However, the reliability of T.W.'s identification is supported by the fact that she gave a detailed description of both young men and distinguished the minor from the gunman. T.W. and the minor are the same race and close in age. The minor notes that T.W. described him as taller than he may be, but this is a minor discrepancy. T.W. was completely certain of her identification when she saw the minor in the laundromat, spontaneously stating he was "one of the men who tried to rob her" and reaffirming the identification after the police took her aside and cautioned her that she must be "really sure" before making a positive identification. No more than a few minutes elapsed between the crime and the confrontation. The in-field identification was reliable under the totality of the circumstances and, contrary to the minor's argument on appeal, constitutes substantial evidence of guilt.
T.W. said the gunman was "at least" 5 feet 10 inches tall and the second individual taller. The minor testified he is 5 feet 7 inches tall but he appears taller in police videos taken at the time of arrest.
We also reject the minor's argument that the juvenile court abused its discretion in excluding certain testimony. The minor proffered Rosa Bay, an "educational attorney," as an expert who "understands that [the minor's] intellectual capacity is similar to a first grader" and could explain "why someone with that intellectual disability might run from a situation rather than taking a more adult approach and talking to the police." Bay represented the minor in establishing his eligibility for a public school individualized education program (IEP).
The court properly sustained an objection to the proffered testimony. Bay has no "special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on the subject to which [her] testimony relates." (Evid. Code, § 720, subd. (a).) Bay is an attorney, not a psychologist or other specialist in assessing intellectual disabilities. As the juvenile court observed, "Bay might be able to describe what's in reports, but she's not qualified to testify to any intellectual disability . . . ." The proffered testimony was also largely cumulative, as the minor himself testified that he had an IEP and attended special education classes. Moreover, no expert testimony was needed to understand that a young person "might run from a situation rather than taking a more adult approach and talk[] to the police." The minor's flight was not "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) The trier of fact simply had to assess the minor's credibility, which needed no expert testimony.
Disposition
The jurisdictional and dispositional orders are affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------